Telecommunications Piracy Act Exposed

The Telecommunications Piracy Act does not list adoption or approval information. ALEC has attempted to distance itself from this piece of legislation after the launch of ALECexposed.org in 2011, but it has done nothing to get it repealed in the states where it previously pushed for it to be made into law.

ALEC Bill Text

Section 1. Definitions

As used in this Act:

A. “Deliver” means to actually or constructively sell, give, loan, or otherwise transfer a telecommunications device, counterfeit telecommunications device, plans, instructions, or materials to another person.

B. “Telecommunications” means the origination, emission, transmission, or reception of data, images, signals, sounds or other intelligence or equivalence of intelligence of any nature over any communication system by any method including but not limited to electronic, magnetic, optical, digital, or analog.

C. “Telecommunications device” means any instrument, equipment or machine that facilitates telecommunications. Telecommunications device includes but is not limited to a computer, computer chip or circuit, telephone, pager, personal communicator, transponder, receiver, radio, modem, or instrument that enables the use of a modem.

D. “Telecommunications access device” means an instrument, telecommunications device, card, plate, code, account number, personal identification number, electronic serial number, mobile identification number, counterfeit number, financial transaction device, or scanner that alone or with another telecommunications access device can acquire, intercept, provide, receive, use, or otherwise facilitate the use of a telecommunications device, counterfeit telecommunications device, or telecommunications service.

E. “Telecommunications service” means providing, allowing, facilitating, or generating any form of telecommunications through the use of telecommunications devices or telecommunications access devices over a telecommunications system.

F. “Counterfeit telecommunications device” means a telecommunications device alone or with another telecommunications device that has been altered or programmed to acquire, intercept, receive, or otherwise facilitate the use of a telecommunications service without the authority or consent of the telecommunications service provider. Counterfeit telecommunications device includes but is not limited to a clone telephone, clone microchip, tumbler telephone, tumbler microchip, or wireless scanning device capable of acquiring, intercepting, receiving or otherwise facilitating the use of a telecommunications service without immediate detection.

G. “Publish” means to communicate information or make information available to one or more persons orally, in writing, or by means of any telecommunications. Publish includes but is not limited to communicating information on a computer bulletin board or similar system.

H. “Aggregate Amount” means any direct or indirect loss incurred by a victim including but not limited to, the value of any money, property or service lost, stolen, or rendered unrecoverable by the offense, or any actual expenditure incurred by the victim to verify that telecommunications, telecommunications service, a telecommunications device, telecommunications access device, or counterfeit telecommunications access device was not altered, acquired, damaged, deleted, disrupted, or destroyed by the access.

Section 2.

A person shall not knowingly obtain or attempt[1] to obtain telecommunications service with intent to avoid, attempt to avoid, or cause[2] another person to avoid or attempt to avoid any lawful charge for that telecommunications service by use of any of the following:

A. A telecommunications access device without the authority or consent of the owner, subscriber or lawful holder of that telecommunications access device.

B. A counterfeit telecommunications access device.

C. A fraudulent or deceptive scheme, pretense, method, or conspiracy or any device or other means, including but not limited to any of the following:

1. Using;a false, altered or stolen identification.

2. The use of a telecommunications access device to violate this section by a person other than the owner, subscriber or lawful holder of the telecommunications access device pursuant to an exchange of anything of value to the owner, subscriber or lawful holder to allow that unlawful use of the telecommunications access device.

D. A telecommunications device or counterfeit telecommunications device

[1]Some states permit identical sanctions for criminal offenses and “attempted” criminal offenses. If your state permits identical sanctions, the penalty structure of this model legislation shall apply, if not, you may want to develop a separate, lesser penalty structure for attempted offenses

[2]“Cause” is the preferred term. It prevents social engineering and it protects innocent parties.

Section 3.

A person who violates Section 2. is guilty of a crime as follows:

A. If the total value of the telecommunications service obtained or attempted to he obtained is less that $200 the person is guilty of a misdemeanor punishable by community service, or imprisonment for not more than {Insert Number of Days in Applicable State Misdemeanor Statute/ days or a line of not more $500 or three times the amount of the telecommunications service obtained or attempted to be obtained, whichever is greater, or a combination of community service, imprisonment and a fine

B. If any of the following apply, the person is guilty of a misdemeanor punishable by imprisonment, for not more than one year or a line of not more than $2000 or three times the amount of the telecommunications service obtained or attempted to be obtained, whichever is greater, or both imprisonment and a fine:

1. The total value of the telecommunications service obtained or attempted to be obtained% $200 or more, but less than $1000.

2. The person subsection (A) and has a prior conviction for committing or attempting to commit a violation of this Act.

C. If any of the following apply, the person is guilty of a felony punishable by imprisonment for not more than five years or a fine of not more than $10,000 or three times the amount of the telecommunications service obtained or attempted to be obtained, whichever is greater, or both imprisonment and a fine:

1 .The total value of the telecommunications service obtained or attempted to be obtained is $1,000 or more but less than $20,000.

2. The person violates this Subsection (A) and has two prior convictions for violating this Act.

3. The person violates subsection (B) and has a prior conviction for committing or attempting to commit an offense under this Act.

D. If any of the following apply, the person is guilty of a felony punishable by imprisonment for not more than 10 years, or a fine of not more than three times the value of the telecommunications service obtained or attempted to be obtained, or both imprisonment and a fine:

1. The total value of the service obtained or attempted to be obtained is $20,000 or more.

2. The person violates Subsection (A) and has three or more prior convictions for committing or attempting to commit a violation under this Act.

3. The person violates subsection (B) and has two or more prior convictions for committing or attempting to commit an offense under this section or Act.

4. The person violates subsection (C) and has three or more prior convictions for committing or attempting to commit and offense under this Section or Act.

Section 4.

Restitution may be ordered at the time of sentencing. Such restitution shall restore to the owner, subscriber or lawful holder his or her property, or the aggregate amount of the value of his or her loss. Such an order of restitution shall have the same force of law as a civil judgement against the person being sentenced.

Section 5.

A. The values of the telecommunications service obtained or attempted to be obtained in separate incidents pursuant to a scheme or course of conduct within one year may be aggregated to determine the total value of the telecommunication service obtained or attempted to be obtained.

B. If the prosecuting attorney intends to seek an enhanced sentence based upon the defendant having a prior conviction, the prosecuting attorney shall include on the complaint and information a statement:listing that prior conviction. The existence of the defendant’s prior conviction shall he determined by the court, without a jury, at sentencing. The existence of a prior conviction may be established by any evidence relevant for that including hut not limited to one or more of the following:

1. A copy of the judgement or conviction.

2. A transcript of a prior trial, plea taking, or sentencing

3. Information contained in a presentence report.

4. The defendant’s statement.

Section 6.

A. A person shall not alter, manufacture, possess, deliver, offer to deliver, or advertise a counterfeit telecommunications device or alter, manufacture, possess, deliver, ocher to deliver, or advertise a telecommunications device or allow the telecommunications device to be used to do any of the following or knowing or having reason to know that the telecommunications device is intended to be used to do any of the following:

1. Obtain or attempt to obtain telecommunications service with the intent to avoid or aid or abet or cause another person to avoid any lawful charge for telecommunication service in violation of this Act.

2. Unlawfully conceal the place of origin or destination of any telecommunications service.

3. To unlawfully conceal the identity of the user.

B. A person shall not deliver, offer to deliver, or advertise plans, instructions, or materials for manufacture of a counterfeit telecommunications device or for manufacture or alteration of a telecommunications device that the person intends to be used or knows or has reason to know will he used or is likely to he used to violate Subsection (A)

C. A person who violates subsection (A.) Or (B.) Is guilty of a felony punishable by imprisonment for not more than four years or a fine of not more than $2,000 or both

D. Any telecommunications device, counterfeit telecommunications device, plans, instructions or materials described in this section may be seized under warrant or incident to a lawful arrest. Upon conviction of a person for violating this section, the telecommunications device, counterfeit telecommunications device, plans, instructions, or materials involved in the violation may be destroyed as contraband by the sheriff of the county in which the person was convicted or turned over to the telecommunications service provider in the territory in which the seizure occurred.

Section 7.

A. Except as provided elsewhere in this Act, a person who knowingly or intentionally publishes a telecommunications access device or counterfeit telecommunications access device with the intent that it be used or knowing or having reason to know that it will be used or is likely to be used to violate other sections of this Act is guilty of a misdemeanor punishable by community service, or imprisonment for not more than {Insert Number of Days in Applicable State Misdemeanor Statute} days in jail or a fine of not more than $100 or any combination of community service, imprisonment and fine.

B. A person who violates subsection (A) and has a previous conviction for a violation of this Act is guilty of a felony punishable by imprisonment for not more than five years or a fine of not more’than $5,000 or both.

C. If the prosecuting attorney intends to seek an enhanced sentence based upon the defendant having a prior conviction, the prosecuting attorney shall include on the complaint and information a statement listing that prior conviction. The existence of the defendant’s prior conviction shalt he determined by the court, without a jury, at sentencing. The existence of a prior conviction may be established by any evidence relevant for that including but not limited to one or more of the following:

1. A copy of the judgement or conviction.

2. A transcript of a prior trial, plea taking, or sentencing.

3. Information contained in a presentence report.

4. The defendant’s statement.

Section 8.

A violation of this Act may be prosecuted in the jurisdiction in which the telecommunication or telecommunications service originated or terminated or in the jurisdiction to which the bill for the telecommunications service was or would have been sent.

ENDNOTES

1. In states where there are eavesdropping laws to obtain court orders for electronic surveillance, these laws should be added to the list of “designated offenses.” Similarly, states that have racketeering laws should include these crimes as a “predicate offense” for their RICO laws. The role of organized crime is inextricably interwoven into these illicit activities. Specifically, the clone phone is the communications tool of choice for today’s criminal entrepreneur. Accordingly, eavesdropping and racketeering strategies are critically important to the prosecutor’s arsenal of containment tools. These amendments can be easily proposed and viewed as conforming legislation.

2. ALEC recommends and invites state and local law enforcement agencies to work with the private sector and make this issue a law enforcement priority.